The Taft Court (1921–30)

First Amendment

Which two justices dissented in the Gitlow decision?

Justices Oliver Wendell Holmes and Louis Brandeis, sometimes called the “Fathers of the First Amendment,” dissented. Holmes argued that the Court should have applied his “clear and present danger” test that he had advocated in his Schenck v. United States (1919) and Abrams v. United States (1919) opinions. Holmes wrote that Gitlow’s writings did not induce an immediate uprising or cause a revolution: “There was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant’s views.”

Holmes explained: “It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement…. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration.”